Public access to court records vs. litigant privacy: leveling the playing field

by Ralph L. JacobsonDecember 4, 2014

Pursuant to Rule of Court 2.550(c) and its predecessor, California court records have long been “presumed to be open” to the public, absent exceptions for confidentiality required by law. But even ten or fifteen years ago, accessing civil court records in California and elsewhere was an arduous task.

It took a great deal of effort to get information from court files. An “inquiring mind” had to go to the county clerk’s office, borrow the desired physical court file, then go to an adjacent public access area and copy the needed file portions on the court’s copying machine: the court’s file could not leave the premises.

Contrast those past procedures with public access to court files today: most courts have an accessible online database where, usually for a small fee, one can obtain and save to his computer (or print) virtually any civil filing by any party in any civil case. Sites like domain web in Alameda County allow the user to enter a case number for the case to which they desire access, then go through an index of all court filings in that matter from beginning to end, then select any desired documents for access and copying. While the ease of public access varies, almost all counties have like sites; and they get easier to use all the time.

While these technological advances providing online access constitute a real revolution in public access, there is a “dark side” to them: the loss of litigant privacy. Open access to court records can represent more than just the ability of the public to view lawyers’ mundane presentations concerning the intricacies of a civil case.

Take, for example, the following hypothetical: personal injury plaintiff, in her 20’s, has an ongoing case as to the nature and extent of her physical and psychiatric damages in a case alleging sexual abuse by a clergyman. Filings in the case might include Settlement Conference Statements filed by one or more parties, which outline the alleged sexual acts underlying the claim, and plaintiff’s asserted injuries allegedly resulting from them. Attached could be medical records and physician reports about plaintiff’s otherwise confidential physical and psychiatric conditions, both incident related and otherwise.

Add to this scenario the trend, over the past decade, for employers, landlords, and others to use fee-based search services to comb the internet to get the litigation history of prospective employees or tenants, as it might affect suitability for employment or tenancy. Such a search might theoretically reveal this hypothetical plaintiff’s bi-polar tendencies, or even her sexual history as it might be disclosed in a psychiatric report. While technology did not make this private information appear in public court files (it may have been there all along), it has made confidential personal information infinitely more accessible to those seeking it.

There are a few partial solutions to this dilemma of which counsel for parties whose confidential information is at issue should be aware. The first is a simple one: awareness of the issue. That awareness might lead counsel to limit disclosure of a client’s personal information in filed documents in the first place, particularly in court filings (like pleadings) where providing such detail may offer no real benefit.

A second potential solution is moving to seal documents pre-filing, where appropriate. This topic is looked at in more detail in one of my earlier blog posts entitled “How To Seal A Record In A Civil Case.” The applicable rule, drafted primarily to protect public access to the courts, states:

“The court may order that a record be filed under seal only if it expressly finds facts that establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest.” CRC 2.550(d).

An order obtained by a party sealing a record must specifically state the facts that support these findings. CRC 2.550(e). The court must not permit a record to be filed under seal based solely on the agreement or stipulation of the parties. CRC 2.551(a). The procedure for filing a motion or application to seal a record is set forth in Rule of Court 2.551(b).

While these Rules offer many safeguards against unlimited sealing so as to protect public access, sealing would likely be allowed, and present a good solution, for documents like the Settlement Conference Statements described in the hypothetical above: the court could still review confidential medical reports and records attached to the statements to evaluate the underlying case, but there would be no public access to the plaintiff’s confidential information, if sealing was ordered.

Finally, case law offers a solution when there is no pre-filing sealing order, one applicable particularly when a litigation opponent files documents revealing the other’s confidential personal information.

In Oiye v. Fox (2012) 211 Cal.App.4th 1036, 1068, review denied (Mar. 13, 2013), the defendant in a civil sexual abuse tort case included, in an injunction opposition, medical reports and diary excerpts relating to and discussing the plaintiff’s personal psychiatric condition and medical history. On plaintiff’s motion, the trial court granted (and the appellate court upheld) an order sealing those exhibits post-filing, irrespective of the limitations otherwise applicable under CRC 2.550 et al. Citing to the plaintiff’s rights under the Confidentiality of Medical Information Act (Civ Code § 56 et seq.), the Court at 1068 rejected the defendant’s contention that the requested relief should be denied because plaintiff’s psychiatric condition was properly at issue in the case: “However, disclosure to an opponent in civil litigation does not necessarily waive the patient’s privilege to keep the information from third parties, including the public.”

In summary, counsel should take all reasonable steps to protect a client’s confidential personal information. Those steps should include: (1) minimizing disclosure of such information in court filings, in the first place; (2) stipulating to, and then obtaining a court order permitting, sealing of court filings by all parties that include any party’s confidential information; and (3) moving to have sealed (or, post-litigation, perhaps deleted) filings by litigation opponents that contain confidential personal information of a party.

Public access to court records is not an absolute good; it should be favored only to the extent that the privacy interests of litigants are offered appropriate protection. Counsel should take steps necessary to protect their client’s privacy rights in that regard.

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